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1-1992

Of PDRs and

Jim Paulson

James Hambleton

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Recommended Citation Jim Paulson & James Hambleton, Of PDRs and Precedent, 55 Tex. B.J. 1074 (1992). Available at: https://scholarship.law.tamu.edu/facscholar/3

This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. I LEGAL RESEARCH Of PDRs and Precedent

By Jim Paulsen and James Hambleton

"Our best guess..., is review (or "PDR" to insiders) process on a Criminal Appeals! Here it is, that 1992 really does mark track that bids fair to eclipse both of its the court's one-hundredth birth- illustrious counterparts. day, and nobody seems to be the centenary of the Texas A decade or so ago, when the PDR sys- Pitycelebrating. the poor TexasA blue-ribbon Court of tem went into effect, no one could have commission recommends that the supreme Court of Criminal suspected such an outcome - after all, the court take direct administrative control of Appeals. The enabling Texas Court of Criminal Appeals was the court of criminal appeals, and some given so very little with which to work. In propose to get rid of the court altogether. legislation did not take 1981, when the legislature decided that Even make things worse, the state legisla- criminal appeals should first be routed to ture has just eliminated almost all of the effect until Sept. 1, 1892 the various courts of appeals instead of Texas Court of Criminal Appeals' jurisdic- and the first reported being sent directly to Austin, the court of tion by repealing all crimes but murder, criminal appeals was given discretionary effective Sept. 1, 1994. (Yes, they really decision is dated Oct. 9, jurisdiction. The original recommendation did - just check West's 1992 pocket part from the Judicial Planning Committee was for Title I of the Penal Code. And no, they 1892." that the process should be called " of really didn't mean it ... at least, we hope ," just like that of the U.S. they didn't. And yes, there's a story behind take effect until Sept. 1, 1892 and the first Supreme Court. After vigorous debate, dur- it, but the story is too long and too boring reported decision - Jim Jones v. State - ing which the merits of the Texas Supreme even for this column.) is dated Oct. 9, 1892. (Mr. Jones, by the Court's writ of error notation system were Adding insult to injury, people won't way, was convicted of murder in the considered repeatedly and specifically even leave the court's birthday celebration course of attempted horsetheft and sen- rejected, the certiorari approach was adopt- alone. No less a legal authority than the tenced to life in prison; so far as the court ed. Texas Lawyer, in its Sept. 14, 1992 edition, of criminal appeals is concerned, he may The only change, and a good one at that, announced that the court of criminal still be there.) was to replace the plain English phrase appeals dates to 1876, which would make So, if this really is the court's hundredth "petition for discretionary review" for the the centenary celebration about 25 years birthday, what sort of contribution can a unspellable and unpronounceable "writ of too late. The Texas Lawyer evidently legal research column make to the celebra- certiorari." That way, not only could ordi- agrees with the Harvard Bluebook, which tion? The answer is easy. We propose to nary humans understand what was going has always insisted on confusing the "old" take the next couple of pages to demon- on without resorting to a dictionary, but the court of appeals with the court of criminal strate that the Texas Court of Criminal court of criminal appeals could ignore appeals. This sort of mistake evidently is Appeals is badly underrated in at least one some of the more questionable aspects of easier to make than one might think: respect - its use of discretionary review the U.S. Supreme Court's certiorari prac- LEXIS lists occasional court of criminal powers to discourage out-of-staters from tice - like dissents or concurrences on appeals rulings as court of appeals deci- even thinking about setting up a law prac- certiorari. sions, and vice versa. Even U.T.'s tice in Texas. At first, it looked like the Texas Court of Greenbook can't get it right. Up through The U.S. Supreme Court took more than Criminal Appeals was determined to keep the sixth edition, the Texas Rules of Form 50 years to complicate the certiorari things simple. In a 1983 decision, the court claimed the court of criminal appeals dated process to the point that even specialists went to great pains to announce that a to 1889. The newest (eighth) edition, cannot understand it. Likewise, the Texas "PDR refused" is not "an endorsement or issued in September, now swears that the Legislature and Texas Supreme Court adoption of the reasoning employed by the court dates to 1891, which would put the played with the writ of error system for court of appeals." So far, so good. That's birthday celebration off by a year. nearly a century before refining it to the what "discretionary" is all about. But then, Our best guess, though admittedly con- point that it now generates hate mail from only a few months later, the court issued its trary to the combined and weighty authori- the Fifth Circuit. (Check out, for example, opinion in Sheffield v. State (650 S.W.2d ty of the Bluebook, Greenbook, and Texas Exxon Co. v. Banque de Paris, 889 F.2d 813). Lawyer, is that 1992 really does mark the 674 (5th Cir. 1989)). Yet the Texas Court In Sheffield, the court of criminal centenary of the Texas Court of Criminal of Criminal Appeals, in but a few short appeals refused the petition for discre- Appeals. The enabling legislation did not years, has put the petition for discretionary tionary review per curiam. The court stat- ed, in what has since become a litany in and agree with the court of appeals opin- changing an inherently non-precedential many PDR refusals: "As is true in every ion. We believe that they reached the cor- act into something at least a little bit prece- case, refusal of discretionary review by rect result for the correct reasons in decid- dential. The court warned in Sheffield that this court does not constitute an endorse- ing this issue." As if this were not no aspect of a PDR refusal - including ment or adoption of the reasoning complicated enough, individual members the opinion on PDR refusal - is preceden- employed by the court of appeals." of the Texas Court of Criminal Appeals tial and at least a dozen subsequent PDR The court just would not leave it at that, also have taken to dribbling marshmallow refusals repeat the message. though. Instead, it continued, in language or chocolate topping on some PDR The problem, though, is that the court of quoted many times since: refusals, in the form of concurrences or criminal appeals has gotten itself caught in To prevent any misunderstanding, we dissents, or even just topping off a PDR a classic form of "Do as I say, not as I do" take this opportunity to emphasize that refusal with a little red cherry "so-and-so reasoning. Every time the court of criminal the summary refusal of a petition for would grant" notation. Our listing is not appeals writes a PDR denial emphasizing discretionary review by this Court is of exclusive, by the way. Other varieties of that PDR denials mean nothing it cites as no precedential value. This is true PDR refusal could include chocolate-vanil- authority - you guessed it - Sheffield, where the petition is refused without la swirl and mocha with sprinkles. But we nothing more than a PDR denial itself. opinion, as is the usual practice, as well have already gone into more than enough Little wonder that the lower courts now as where the petition is refused with a detail for one column. cite and discuss, whenever the spirit moves brief opinion disavowing the reasoning The result of this wonderfully intricate them, per buriam PDR refusals (Amarillo, employed by the court of appeals, as in system is predictable: a free-for-all in the Dallas, and San Antonio, at least), or even the instant case. The Bench and Bar of lower courts. We can find statements like concurrences (Eastland and Houston the State should not assume that the the Amarillo Court of Appeals' conclusion [14th]) or dissents on PDR refusal (Dallas summary refusal of a petition for dis- that by refusing a PDR outright (plain and Waco). This habit is not necessarily cretionary review lends any additional vanilla) the court of criminal appeals bad - after all, some four-judge concur- authority to the opinion of the court of "approved [the] result," and San Antonio's rences on PDR denials would seem as appeals. conclusion that the PDR "constitutes the authoritative, in most any way that counts, And the interpretation race was on! only recent indication of the court's feel- as one of the court's plurality opinions "on The basic problem with the Sheffield ings," juxtaposed with Eastland's conclu- the merits." In fact, even the court of crim- rule, of course, is that it is intuitively unbe- sion that "refusal of a petition for discre- inal appeals has gotten caught up in the lievable. Think about it for a second: The tionary review adds nothing to the process, citing its own PDR refusals (as in refusal of a PDR is never of any preceden- precedential value of an opinion." The cur- Carroll v. State) and even dissents from tial value even if some petitions are rent majority opinion, to the extent that refusals (as in Powell v. State) on the mer- refused "with a brief opinion disavowing any majority can be discerned from this its of issues. the reasoning employed by the court of mess, seems to be - in the words of a And on that note, it is best for us to stop. appeals"? Sure. A more natural conclusion respected law professor/judge writing in After all, any more citations and this will would be that if the court of criminal one of our state's law reviews - that start to sound like a substantive article, appeals says something when it doesn't refusal at least "indicates a finding that the with a resulting loss of readership. At any agree with the lower court's reasoning, we court of appeals reached the correct rate, it should be clear that the Texas Court can assume the court is not offended by result." No matter how you slice it, of of Criminal Appeals, in developing and those decisions in which it refuses a PDR course, that conclusion makes PDR denials refining an ostensibly simple PDR process, without comment. And that is exactly what at least a little bit precedential, and is sure- has managed to combine all the flexibility a lot of people, including some courts, ly contrary to Sheffield. of the U.S. Supreme Court's certiorari have concluded. The impact of the Texas Court of process with all the message-sending abili- To improve the scholarly tone of this Criminal Appeals' PDR practice is not ty of the Texas Supreme Court's writ nota- column a little, we should note that, since limited simply to speculation over the tions, while simultaneously preserving and Sheffield, it has become clear that there are extent to which a "PDR refused" adds to or improving upon all the most confusing at least four types of PDR "refusals." Type detracts from the value of a court of aspects of each. This is no mean accom- I, or plain vanilla refusals, consist of a sim- appeals opinion. After all, every time any- plishment for 10 short years. Just think ple statement from the court that the peti- one on the court of criminal appeals writes what our court of criminal appeals might tion for discretionary review has been anything in the course of a PDR refusal, do in its next century! refused. Type II, or double-dip vanilla that becomes an "opinion," printed in refusals, consist of a notation from the West's reporters. Little wonder that, when- Jim Paulsen (J.D. Baylor, LL.M. court that the petition for discretionary ever authority lies thin on the ground, the Harvard) is assistant professor of law at review has been refused, together with an temptation to quote or cite these statements the South Texas College of Law. James additional statement (usually citing becomes irresistible. In highbrow legal Hambleton (J.D. George Washington, MLS Sheffield) to the effect that the refusal real- theory, of course, if refusing a PDR means Michigan) is professor of law and director ly, absolutely, positively doesn't mean any- nothing, anything the court of criminal of the law library, Texas Wesleyan thing at all. Type III, or chocolate-flavored appeals says in refusing a PDR is dicta, University Law School. Carl Selesky and refusals, include some dark hints - as in and dissents or concurrences on denials Ursula Hall, students at South Texas, Sheffield - to the effect that the court of should be double dicta, at least. assistedgreatly, as did Prof.Susan Crump. criminal appeals is displeased with some- Nonetheless, courts cite "PDR refused" per Others helped in return for a promise to thing the lower court did. curiams left and right. keep their names out of print. The legal The Type IV PDR refusal, a rare butter- At first blush, one might think that this research column is a semi-regularfeature scotch-flavored variety, turns the court of is exactly the sort of behavior that the of the Texas Bar Journal. The writers wel- appeals' opinion golden, as in the court of court of criminal appeals was warning come criticism, comments, corrections, criminal appeals' conclusion in Gersh v. against in Sheffield - intense scrutiny of and suggestionsfor topics to be covered. State that "we have reviewed the record every word the court might utter, thereby